Blog No.194. Hurray For Senator Flake!

We are leaving on Monday for a trip  and I had not planned another blog before our departure, but the Senate Judiciary Committee hearing on Thursday, and the further developments on Friday, seemed to call for comment. The action of Senator Jeff Flake, leading a few colleagues to demand an FBI investigation before reaching a final vote on the nomination of Judge Brett Kavanaugh, was brave and necessary. It may or may not lead to a satisfactory resolution of a dire and depressing situation, but it at least leaves open the possibility of such a resolution.

After the dramatic testimony of Dr. Christine Blasey Ford and Judge Kavanaugh, it appeared that we were headed for a confirmation on rigorous party lines that would place on the Supreme Court a Justice with a stain the dimensions of which are yet to be determined. That result would have been extremely unfortunate for the country, the Court, Judge Kavanaugh and, whether they believe it or not, the Republican Party.

As Blog No. 193 observed before the Thursday Judiciary Committee hearing:

Neither Senate Republicans nor President Trump have offered any persuasive reason for not requesting that agency to investigate, as it did in the case of the allegations made during the confirmation hearings for Justice Thomas. Admittedly, such an investigation might fail to provide definitive answers—just as it did in the case of the Thomas nomination—but it would demonstrate a healthy interest in getting as close to the truth as possible. And if the investigation turned up no support for the allegations against Kavanaugh, that would surely strengthen his position.

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Senator McConnell has stated flatly that he has the votes to confirm Kavanaugh, and perhaps he does, but this opera may not be over. If Dr. Ford  makes a particularly compelling presentation on Thursday, or Judge Kavanaugh stumbles, a few Republicans might summon the courage to insist on an FBI investigation before proceeding to a final vote. That is a narrow path to honor for the Republican Party, but one that is not yet entirely foreclosed.

One may debate whether or how badly Judge Kavanaugh stumbled, but it was universally acknowledged—even by President Trump—that Dr. Ford’s testimony was indeed compelling. In fact, it was the strength of her testimony that made Flake’s initiative possible.

To  reprise the hearing briefly, comments should probably begin with the inexcusably awkward format it employed. The Republican majority did do a sensible thing in hiring an outside counsel. It was sensible not only because it avoided the optics of old, white men critically questioning a younger woman about a painful experience, but also because most Senators are not competent questioners. Nevertheless, the format established by the majority greatly handicapped the hired counsel by requiring her to ask questions in five minute increments alternating with Democratic Senators. It is not a mode in which even a competent questioner can function effectively and, midway through Kavanaugh’s testimony the Republicans gave up on it entirely. The only effective way for a Congressional committee to operate in such cases is to have the bulk of the questioning done by majority and minority counsel, in turn and without interruption, followed by giving the committee members whatever face time they feel they need. The standard was set by the Ervin Committee in its Watergate hearings and it worked very effectively.

As for the testimony given by Dr. Ford and Judge Kavanaugh, most observers viewed it through the prism of personal and politically motivated perceptions. While Republicans admitted that the testimony of Dr. Ford was compelling, they pointed to gaps in her account: when and where the incident took place and how she arrived there and how she got home when she left. There are, so far, no witnesses who recall the gathering that she described, though the lack of recollection does not, as Kavanaugh would claim, “refute” her testimony.

Although Dr. Ford appeared clearly under stress, she remained impressively cool and collected throughout. That was not the case with Judge Kavanaugh, who appeared angry and loudly defiant and launched a partisan attack on Democrats, placing the blame for his predicament on them. The nadir may have been reached when Kavanaugh accused Democrats of seeking “revenge for the Clintons.” There are valid reasons to criticize Democrats’ handling of the matter, but it is less clear that Kavanaugh was the one to advance them, let alone in the manner he did. At times he sounded rather Trumpian (the repetition of “I did not sexually assault anyone” had echoes of the mantra “No collusion”) and, not surprisingly, Trump tweeted approvingly “Judge Kavanaugh showed America exactly why I nominated him.” Quite so, but whether it showed appropriate judicial temperament is another matter.

Kavanaugh was perhaps at his most effective in relying on his calendar to claim that he was simply not around much during the summer of 1982. Yet there were gaps in the calendar that a skillful cross-examiner with sufficient time might have explored. He appeared evasive in discussing his youthful drinking and even more in attempting to sanitize raunchy references in his high school yearbook that conflicted with the “choirboy” image he was seeking to project. As noted in the New York Times:

Judge Kavanaugh’s yearbook page included the entries “Judge — Have You Boofed Yet?” and “Devil’s Triangle.” On Thursday, he said that “boofed” meant “flatulence” and that “Devil’s Triangle” was a drinking game in which three glasses were arranged in a triangle.

“Boofed” in the 1980s was a term that often referred to anal sex, and that is how Judge Kavanaugh’s classmates said they interpreted his comment. They said they had never heard it used to refer to flatulence.

Similarly, they said that they had never heard of a drinking game called Devil’s Triangle, but that the phrase was regularly used to describe sex between two men and a woman. “The explanation of Devil’s Triangle does not hold water for me,” said William Fishburne, who managed the football team during Judge Kavanaugh’s senior year.

Attempts to explain away unsavory yearbook lingo may seem a trivial matter, but they may fairly be considered in assessing Kavanaugh’s credibility.

At the end of the day, the fundamental issue was unresolved. The convictions of partisans remained unshaken, and the few non-partisans remained uncertain as to where the truth lies. As David Brooks put it on the PBS NewsHour, “But who to think is true, I don’t think any of us have any concrete evidence to make a dispositive judgment on that. I’m hoping it will come in the next week. I don’t know.”

As Brooks indicated, there is no assurance that the next week will produce evidence commanding bipartisan support. The time allotted, one week, may simply be insufficient and it is not clear what the “limited scope” of the investigation will encompass, specifically whether it will include the allegations of Kavanaugh’s most recent accusers, Deborah Ramirez and Julie Swetnick. Clearly, if the investigation is to serve the intended purpose, it must be given the time and scope required to be convincing of its adequacy. Moreover, it is generally understood that the FBI does not draw conclusions but merely reports evidence. If that is the case, and significant evidence is uncovered, the most appropriate course might be to return the matter to the Judiciary Committee for its further consideration. That action would be anathema to Republicans and it seems unlikely that it would be undertaken. On the other hand, it seemed unlikely on Friday morning that any FBI investigation at all would be permitted. Thanks to Senator Flake, there are now at least grounds for hope.

Finally, it is claimed by some supporters of Judge Kavanaugh that he is entitled to a presumption of innocence. And Senator Lindsey Graham offered the even bolder claim that “You have to prove beyond a reasonable doubt that it did happen.” Both claims are plainly wrong. Judge Kavanaugh is not a defendant in a criminal proceeding where such rules serve honorable and necessary purposes. Rather, he is a job applicant and the question is whether, exercising common sense and good judgment, he is qualified for the job.

Imagine that you are the CEO of a company interviewing a candidate for a senior position and you are made aware of allegations of serious sexual misconduct, perhaps early in his career. The allegations are credible but no charges were filed and they are adamantly denied by the applicant, who has had a brilliant record of business success. You might decide to take a chance and hire the applicant, even though others with brilliant records and no problems in their backgrounds are also available. In any case, the legalistic concepts of a presumption of innocence, and proof beyond a reasonable doubt, would not enter into your thinking, nor should they. Still less should they apply when considering an applicant for a position with the immense power and lifetime tenure given a Supreme Court Justice.